concurring. I concur with the majority in its holding that this case should he reversed, hut I would reverse it solely on the basis that Tommy Cage was an employee of the Arkansas Democrat. I do not think it necessary in this case to reach’the question of what constitutes, “permitting” a child to work. This is a broad term (and a broad holding) with more than one interpretation, and the majority, holding today can extend much further than simply prohibiting a child less than 14 years old from selling newspapers. Likewise, I do not consider it essential to this decision to examine the question of whether an independent contract can be legally entered into between a publisher and a newsboy of this age, and not being vital, should not be passed upon.
As stated, in my view, based on the provisions of the Agreement between the Arkansas Democrat and Tommy, together with the acts of the parties established by the evidence, the boy was not an independent contractor, but was an employee of appellee, i.e., a master and servant relationship existed. .
Let us look at some of the definitions and decisions with reference to the term “independent contract- or.” Volume 1, Bouvier's Law Dictionary (Third Revision), Page 1533, defines an independent contractor as:
“One who, exercising an independent employment contracts to do a piece of work according to his own methods, and without being subject to the control of his employer, except as. to the result of his work.
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“A still broader definition has been given as follows: ‘Where a person is employed to perform a certain kind of work, *** the execution of which is left entirely to his discretion, without any restriction as to its exercise, and no limitation as to the authority conferred in respect to the same, and no provision is especially made as to the time in which the work is to be done***.”
This court, in Barr v. Matlock, 222 Ark. 260, 258 S. W. 2d 540 said:
“***One of the tests used to determine whether the relationship, in a case such as this, is. master-servant or independent contractor is. the control of the workman, the right to direct his work, and the right to discharge him from the work.”
In Hollingsworth and Fraizer v. Barnett, 226 Ark. 54, 287 S. W. 2d 888, we stated:
“The power of an employer to terminate the? employment at any time without liability is incompatible with the full control of the work which is usually enjoyed by an independent contractor and is a strong circumstance tending to show the subserviency of the workman.
“The fact that the employment contract was. for no specified time and could be terminated at will by appellant without liability, and that he reserved tlie right to make suggestions as to how the work should be done, are indicative of the relationship of employer-employee between appellant and appellee.”
With these rules, and tests in mind, let us briefly examine the testimony in this case.
Tommy Cage testified that he was hired by Charles N. Gentry, District Adviser for District No. 1 (which includes El Dorado) for the Arkansas Democrat. The boy testified that he was given specific delivery routes. .. he was directed to throw the papers in wax paper on rainy days.. .he could not take subscriptions on other routes, and if any subscriptions were taken on routes other than his own, the carrier boys of those routes would be credited with the subscriptions... .Gentry would pick up the newsboys once or twice per month in the evening, and they would work two or three hours at obtaining new subscriptions.. .he (Tommy) received directions (or training) in selling accident and health insurance which was offered only to subscribers of the Democrat.. .he delivered papers to prepaid subscribers (those who paid directly to the Democrat office). The testimony of Tommy as to his activities as a paper boy was pretty well substantiated by Mr. Gentry.
Y. M. Sorrells, Circulation Manager for the Arkansas Democrat, who signed the contract for appellee, testified that he was also resident agent for Continental Assurance Company, which was the company offering the health and accident insurance to Democrat subscribers, and he stated that appellee company received a small portion of the premiums paid for the insurance. Sorrells testified that the purpose in selling the policies was to hold' readership, and they were sold only to subscribers.
Under the provisions of the contract itself, Tommy was required to give two weeks written notice of the time he desired to terminate the contract, and he agreed that he would diligently maintain delivery service until the date of termination. The publisher, however, was given the right to cancel the agreement “with or without cause, at any time and without previous notice.” Furthermore, the written agreement recites that the distributor “will not distribute or sell either directly or indirectly, any other newspaper in the area in which he operates, during the period of this agreement and, during the period of three months immediately following the termination thereof.” ■ (Emphasis supplied.) This, last, of course, is actually a restrictive covenant, being, in effect, an agreement not to ^compete with the Arkansas Democrat. The usual consideration for such a covenant is simply the employment of the individual. In Bailey v. Kin 240 Ark. 245, 398, S. W. 2d 906, this court said:
“Appellant contends that there is no mutuality (of consideration), and the contract is thus void. He argues that, under the agreement, appellee did not have to employ Bailey for any particular length of time; appellee did not have to pay any specific amount of money; and could fire Bailey without cause. We do not agree with appellant’s contention. Numerous cases support the enforceability of protection covenants where the consideration is based simply upon employment. (Citing cases)”
A study of the testimony relating to Tommy’s activities, and the contract itself, under our holdings and recognized definitions of independent contractor, convinces me that a master-servant relationship existed between this boy and appellee. I would therefore, as stated at the outset, so hold, and reverse this case without considering the question of what constitutes “permitting” a child under 14 to engage in any employment for remuneration, nor would I pass, on the question of whether a valid relationship of independent contractor could be established.
I am authorized to to state that Jones, J., joins in this concurrence.